The Right to Exclude: People, Animals, and Pollution
Abstract
The Supreme Court has deemed the right to exclude one of the most fundamental property rights. Accordingly, the Court has offered the right to exclude heightened protection under the Takings Clause. However, the Court has left significant uncertainty about the scope of the right to exclude that is protected under takings doctrine. For instance, does the Takings Clause require compensation if the government, pursuant to the Comprehensive Environmental Response and Liability Act (CERCLA), requires a landowner to house another party’s pollutants?
This Comment draws from property theory and analytical jurisprudence to offer a new approach to takings analyses concerning the right to exclude. First, it argues that the right to exclude is strictly a Hohfeldian claim-right, or a legal position created by imposing a duty not to invade on someone else. An important implication of this definition for takings challenges to environmental regulation is that the property right to exclude is strictly a right against persons but not against animals or pollution. Second, this Comment addresses what it means for the right to exclude to be enforceable. It argues that government action that renders the right to exclude unenforceable should count as a taking. However, the right to exclude can be enforceable through a variety of means, so the right could remain enforceable absent a particular means of enforcement. Applying this framework to CERCLA, this Comment concludes that CERCLA does not abrogate landowners’ right to exclude.